Citation Nr: 0305803
Decision Date: 03/27/03 Archive Date: 04/08/03
DOCKET NO. 01-06 052A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to dependency and indemnity compensation
(DIC) under the provisions of 38 U.S.C.A. § 1318 (West 1991).
REPRESENTATION
Appellant represented by: Kimberly Bosshart, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and appellant's step-daughter
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The veteran served on active duty from January 1936 to July
1938, and from June 1943 to November 1945. The appellant is
the widow of the veteran. This matter comes to the Board of
Veterans' Appeals (Board) on appeal from a rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in North Little Rock, Arkansas.
In October 2002, the appellant appeared before the
undersigned Acting Member of the Board and gave testimony in
support of her claim.
In March 2001, the RO denied entitlement to service
connection for the cause of the veteran's death, and also
denied entitlement to dependency and indemnity compensation
(DIC) under the provisions of 38 U.S.C.A. § 1318. The Board
further notes that, effective August 23, 2001, the Board
imposed a temporary stay on claims for DIC involving
"hypothetical entitlement" under the provisions of 38
U.S.C.A. § 1318, due to the recent holding in National
Organization of Veterans' Advocates, Inc. V. Secretary of
Veterans Affairs, Nos. 00-7095, -7096, -7098 (Fed. Cir. Aug.
16, 2001). In that decision, the Federal Circuit identified
a conflict between the provisions in 38 C.F.R. § 3.22 and 38
C.F.R. § 20.1106. Although the Federal Court did not
invalidate the regulation, it concluded that it would be
inappropriate for the VA to continue to process claims under
38 U.S.C.A. § 1318 until the validity or invalidity of 38
C.F.R. § 3.22 is finally established. Accordingly, at this
time, the Board cannot adjudicate the issue of entitlement to
DIC under the provisions of 38 U.S.C.A. § 1318 due to the
temporary stay. Therefore, appellate review of the issue of
entitlement to DIC is deferred until the temporary stay is
lifted.
FINDINGS OF FACT
1. The RO has notified the appellant of the evidence needed
to substantiate her claim, and to the extent possible, has
obtained and fully developed all evidence necessary for the
equitable disposition of the claim.
2. The veteran died on January [redacted], 2001. At the time of the
veteran's death, service connection was in effect for
spondylolisthesis L5-S1 with loss of motion, rated as 60
percent disabling. He was granted a total rating based on
unemployability in October 1998, effective from December 11,
1997.
3. The cause of death on the death certificate was listed as
bronchial carcinoma.
4. There is no competent evidence that establishes a nexus
between the veteran's service-connected disability and the
cause of his death.
5. No competent medical evidence has been submitted into the
record which establishes that a disability related to
service, or a service-connected disability, caused or
contributed substantially or materially to cause the death of
the veteran.
CONCLUSIONS OF LAW
1. Bronchial carcinoma was not incurred during service. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 1991
& Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309
(2002).
2. A service-connected disability did not cause or
contribute substantially or materially to cause the veteran's
death. 38 U.S.C.A. §§ 1310, 5103A, 5107(b) (West 1991 &
Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2002);
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Assist
VA has issued final rules to amend adjudication regulations
to implement the provisions of the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov.
9, 2000). 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified
as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and
3.326(a)). The intended effect of the new regulations is to
establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim.
The Board finds that to the extent reasonably possible, VA
has met its duty to notify and assist in the appellant's
case. In a March 2001 letter, the RO explained to the
appellant why her claim was denied and where to call if she
had any questions. A review of the record discloses that the
terminal hospital records have been received and associated
with the claims file. In addition, after the appellant
informed the RO the veteran's death certificate was amended,
she was properly informed by the RO she should submit a copy
of it, along with a statement from the veteran's physician if
the amendment was relevant to her VA claim. The appellant
did not provide a response to the letter.
In the June 2001 statement of the case, and the December 2001
supplemental statement of the case, the RO informed the
appellant of the evidence necessary to establish service
connection for cause of the veteran's death. In the
statement of the case, the RO also included the pertinent
regulations that applied to the appellant's claim.
Correspondence copies of these determinations were mailed to
the appellant's accredited representative.
At her hearing before the undersigned, the appellant was
advised as to what was needed to support a claim for service
connection for the cause of the veteran's death. The
appellant provided hospitalization records of the veteran's
final treatment and she indicated that prior to that
hospitalization, she did not believe that there were any
other medical records that would support her position since
the veteran was in good health prior to that time.
The Board has reviewed the facts of this case in light of the
new VCAA regulations. As discussed above, VA has made all
reasonable efforts to assist the appellant in the development
of her claim and has notified her of the information and
evidence necessary to substantiate her claim. Consequently,
the case need not be referred to the appellant or her
representative for further argument as the Board's
consideration of the new regulations in the first instance
does not prejudice the appellant and the changes articulated
in the new legislation are less stringent. See generally
Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4
Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24,
1992).
II. Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Bronchial
carcinoma may be presumed to have been incurred in service if
manifested to a compensable degree during the first post-
service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West
1991); 38 C.F.R. §§ 3.307, 3.309 (2002).
To establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. The
death of a veteran will be considered as having been due to a
service-connected disability when the evidence establishes
that such disability was either the principal or the
contributory cause of death. Service connection will be
determined by exercise of sound judgment, without recourse to
speculation and after a careful analysis has been made of all
the facts and circumstances surrounding the death of the
veteran to include autopsy reports. 38 U.S.C.A. § 1310 (West
1991); 38 C.F.R. §§ 3.303(a), 3.312 (2002).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
III. The Evidence
The veteran's service medical records show no complaint,
diagnosis or treatment for a lung disability. X-rays of the
chest performed in October and November 1945 were negative.
Post service, in an April 1987 letter, a private physician
stated that the veteran had been treated since 1979 for
several disabilities, including chronic obstructive pulmonary
disease (COPD). VA examination in December 1994 found COPD,
and chest X-rays showed minimal emphysema and probable
chronic interstitial pulmonary disease.
On January 2, 2001, the veteran was admitted to the Baptist
Medical Center with complaints of fever, confusion and
weakness. It was noted by way of history that he had been on
chemotherapy for bilateral lung cancers which had been in
excellent remission. During his hospitalization, chest X-
rays were performed, and were normal. A CT scan of the chest
showed bullous emphysema and it was noted that no cancer was
actually seen. A white blood cell study showed orbital
cellulitis and antibiotics were administered. The veteran
continued to deteriorate and he passed away on January [redacted],
2001.
IV. Analysis
The appellant contends through statements and hearing
testimony that the veteran's service-connected back
disability caused a weakened state in his spine and that an
infection developed there, eventually causing his death. It
is argued that his disability caused a weakened condition and
that his body could not respond to the antibiotics.
After having carefully reviewed the evidence of record, the
Board finds that the preponderance of the evidence is against
the claim for service connection for cause of the veteran's
death. There is no evidence in the claims file to support
the appellant's allegation that the veteran's service-
connected back disability contributed to the veteran's death.
The death certificate clearly shows the cause of the
veteran's death, which is listed as bronchial carcinoma.
There is no competent evidence establishing that the
veteran's service-connected disability contributed to his
bronchial carcinoma. In this regard, the Board notes that
the appellant has stated that the certificate of death has
been amended. As noted above, however, VA requested the
appellant provide a copy of the amended death certificate.
In addition, the appellant was asked to provide a statement
from the treating physician. The appellant has unfortunately
failed to respond to these requests. While VA does have a
duty to assist in the development of this claim, this duty is
not limitless. The appellant's cooperation in responding to
requests for information is required. Thus, in the absence
of documentation to the contrary, the certificate of death of
record must be relied upon by the Board.
In any event, as indicated above, the evidence of record does
not establish that bronchial carcinoma was incurred in or
aggravated by service. Likewise, there is no evidence that
the veteran's service-connected disability contributed
substantially or materially to death, that it combined to
cause death, or that it aided or lent assistance to the
production of death. There is no reference in the file to
any lung disability until 1987, when a private examiner
stated that the veteran had been treated for a lung
disability since 1979. This is many years after service
discharge and there is no evidence of record relating the
disability to service. In addition there is no probative
evidence to show that bronchial cancer was caused by or the
result of the veteran's service-connected disability.
It is noted that in the April 1987 statement from the private
examiner, it was stated that it was possible that the back
condition was causing chronic aggravation which could be
causing the problems for which the veteran was being treated
(that is, COPD, peptic ulcer, and degenerative arthritis).
38 C.F.R. § 3.102 (2002) provides, however, that service
connection may not be based on a resort to speculation or
even remote possibility, and a number of Court cases have
provided additional guidance as to this aspect of weighing
medical opinion evidence. Morris v. West, 13 Vet. App. 94,
97 (1999) (diagnosis that appellant was "possibly" suffering
from schizophrenia deemed speculative); Bloom v. West, 12
Vet. App. 185, 186-87 (1999) (treating physician's opinion
that veteran's time as a prisoner of war "could" have
precipitated the initial development of his lung condition
found too speculative); Obert v. Brown, 5 Vet. App. 30, 33
(1993) (physician's statement that the veteran may have been
having some symptoms of multiple sclerosis for many years
prior to the date of diagnosis deemed speculative); Stegman
v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable
to the veteran's claim that does little more than suggest a
possibility that his illnesses might have been caused by
service radiation exposure is insufficient to establish
service connection); Tirpak v. Derwinski, 2 Vet. App. 609,
611 (1992) (medical evidence which merely indicates that the
alleged disorder "may or may not" exist or "may or may not"
be related, is too speculative to establish the presence of
the claimed disorder or any such relationship). Thus, the
Board considers the April 1987 statement cited above to be
speculative and is not of sufficient probative value to
establish a connection between the veteran's back disability
and any lung disorder. Indeed, since the veteran was not
apparently being treated for bronchial carcinoma at that
time, this statement can not possibly be used to show any
relationship between the veteran's service connected
disability and his eventual cause of death.
The appellant's statements and testimony have been
considered. Her lay statements, while credible with regard
to what she observed, are not competent evidence for the
purpose of showing a medical causation. Consequently, the
Board cannot accord any probative value to her statements
regarding the cause of the veteran's death. See Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992).
The Board sympathizes with the appellant in the loss of her
husband, the veteran. However, the preponderance of the
evidence in the file is against the claimant, inasmuch as the
competent evidence of record indicates that the veteran's
death was the result of bronchial carcinoma, not his service-
connected back disability. Therefore, the appellant is not
entitled to service connection for the cause of his death.
See 38 C.F.R. § 3.312; Alemany v. Brown, 9 Vet. App. 518, 519
(1996).
ORDER
Service connection for the cause of the veteran's death is
denied.
MICHAEL E. KILCOYNE
Acting Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.